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05 November 2008

8

For a lot of folks like me, the fly in the ointment of Election Night was that California's Proposition 8 looks likely to pass by a narrow margin, reversing the California Supreme Court's decision that the California constitution's equal protection language meant that the state had to respect both heterosexual and homosexual marriages.

The California Constitution itself sets out two ways to alter the document that sets the most basic rules about how state government works. Through the initiative process, voters can make relatively small changes to the constitution. But any measure that would change the underlying principles of the constitution must first be approved by the legislature before being submitted to the voters. That didn't happen with Proposition 8, and that's why it's invalid.

“If the voters approved an initiative that took the right to free speech away from women, but not from men, everyone would agree that such a measure conflicts with the basic ideals of equality enshrined in our constitution. Proposition 8 suffers from the same flaw — it removes a protected constitutional right — here, the right to marry — not from all Californians, but just from one group of us,” said Jenny Pizer, a staff attorney with Lambda Legal.

They're going to court. Yet another reason to be glad that I'm a card-carrying member of the ACLU.